Altman v. Gano

Opinion

FILES, P. J. On April 14, 1976, nine days after the death of Howard Robard Hughes, Jr., (hereinafter decedent), Richard C. Gano, Jr., (hereinafter respondent) was appointed special administrator of the California estate of decedent in an ex parte proceeding. Mr. Gano is a resident of California and a first cousin of decedent. He had been nominated as special administrator by Annette Gano Lummis of Houston, Texas, the aunt of decedent.1

On July 7, 1976, appellant Bruce A. Altman, Public Administrator of the County of Los Angeles (hereinafter appellant) filed a petition to suspend the powers of the special administrator and to revoke the special [901]letters of administration pursuant to Probate Code section 521, on the grounds that “the special administrator has or is about to waste the property of the estate committed to his charge.” Two supplements to that petition were later filed.

On July 21, 1976, the trial court granted respondent “the additional powers, duties and obligations of a General Administrator.” This action was taken by the court pursuant to Probate Code section 465 because a proceeding had been instituted to contest an alleged will.

Respondent filed a “Motion for Judgment on the Pleadings or for Summary Judgment” upon the ground that appellant’s motion failed to allege facts which would justify suspension or revocation.

On October 8, 1976, the probate court made an order granting respondent’s motion, and denied appellant’s petition, holding that appellant’s petition as supplemented failed “to state facts or allegations, which if accepted as true, are sufficient to constitute grounds for removal of the Special Administrator on any of the theories of waste, mismanagement, constructive fraud, adverse interests or any other ground for removal delineated in Section 521 of the Probate Code or otherwise.”

Appellant appeals from the order of October 8, 1976, denying his petition. That order is not appealable.

Probate Code section 461 provides that an order appointing a special administrator is not an appealable order. (See O’Bryan v. Superior Court, 18 Cal.2d 490, 495 [116 Cal.Rptr. 49, 136 A.L.R. 595]; Estate of Hewitt, 160 Cal.App.2d 584, 586 [352 P.2d 113].) Probate Code section 465 provides in part here pertinent as follows: “If a special administrator has been appointed, and thereafter a proceeding to contest a will prior to the probate thereof has been instituted, the court shall make an order providing that such special administrator shall thereafter have the additional powers, duties and obligations of a general administrator, and requiring that he give such additional bond as the court deems proper. Such order is not appealable and from the time of the approving and filing of any such additional bond as may be required, such special administrator shall have the powers, duties and obligations of a general administrator.”